2019-08-08

Body cams are weird #GDPR

Body cams are weird - you walk in to a shop with one on, especially with a big WARNING: VIDEO/AUDIO RECORDING sign on it, and you get strange looks. But at the same time, half a dozen CCTV pointing at you, is "normal".

I have yet to be challenged on this, and I am not sure I really want the altercation, but I imagine if asked to "turn that off" it would be valid to say "I will, if you turn that off [point to CCTV]".

Let me stress, I am not a lawyer or GDPR expert, but I'll try and make sure this post is technically accurate and update any errors pointed out to me. And thank you Neil for the links, case references, and definitions and correction of my many typos.

Domestic purposes

One of the things that is outside the scope of GDPR is processing of personal data by a natural person in the course of a “purely personal or household activity”, which is commonly called processing “for purely domestic purposes" This is a tad complicated in interpretation though, and there is some confusion on this.

There has been a judgement on fixed position CCTV cameras recording in a continuous loop in people's homes (domiciles!) that says that it is only domestic purposes if there is no view of any area outside the property boundary. i.e. if the CTTV covers the road, or neighbour's property, it is not domestic purposes and hence you need a lawful basis, a privacy notice, to comply with data subject rights, and everything else that goes with GDPR compliance.

Personally (and I think I am not alone on this), I think this ruling is wrong: The cost seems to have confused the setting of the processing with the purpose of the processing. The classic example of domestic purposes, an "address book", will have names and addresses and phone numbers of people not within the boundary of my property. So clearly it is not the data subjects that define "domestic purposes" but the "purpose" of the processing (the clue is in the words used!). But as we have a ruling, that becomes risky to try and argue that CCTV covering the road is domestic purposes.

Indeed, for security of my home (domestic purposes) I want recordings of people "casing the place" (on the road or opposite my home) as that may have much better, daylight, views of faces to use when later the same vehicle is caught on camera relating to the place being burgled.

Dash cams, and helmet cams, were at that point considered "OK" though (or, at least, there has been no case law yet involving them), which leads to a whole series of scenarios where one cycles home and puts the helmet cam on the wall of the house, and then connects to power, and so on - at what point does it change from "OK" as a helmet cam covering the road, to not "OK" as a CCTV covering the road?

So, to be clear, if you have seen my body cam and found this post because the URL on the label, my purpose in recording is domestic purposes - I record my cycle rides mainly. Just like a dash cam in a car.

Continuous recording

There is some draft guidance on the matter of dash cams which actually suggests that dash cams must not  be continuously recording!

Yes, you read that right - it seems to suggest that you have to start recording just before the "accident" you want to record. I know, that is utter madness.

Of course there are plenty of people who will jump in and point out the technical solution is a pre-recording buffer. That is only saved if you "press the button" (after the accident), or the camera detects a collision, even, which some can!

But that *IS* processing personal information, even if it just goes in to RAM and is replaced after 5 minutes. An example of why that is processing is simple - imagine a dash cam where the camera owner is the cause of an accident. They have a choice about processing of that personal data in the RAM of their camera - they can choose to "press the button" and save the (incriminating) evidence, or not. The data subject can, if they are quick, ask for a copy of that data, at which point they have to "press the button" as otherwise they are deleting personal data after being given (what used to be called) a subject access request. Clearly the data in the pre-record buffer is personal data, and there are data processing decisions to be made in relation to that data.

We can only hope that such a nonsense paragraph is removed from this draft guidance (or, even better, replaced with something more akin to common sense, that someone trying to protect themselves from an accident, or put themselves in a good position if they do suffer an accident, is “domestic purposes”, even if it films someone else in a public setting).

Transition from domestic purposes to commercial

There is then one area about which I am really unsure. If I have personal data, recorded purely for domestic purposes, e.g. my address book, but I then tweet that!

In another recent case, the Court of Justice of the European Union has held that "since [someone] published the video in question on a video website on which users can send, watch and share videos, without restricting access to that video, thereby permitting access to personal data to an indefinite number of people, the processing of personal data at issue in the main proceedings does not come within the context of purely personal or household activities”.

Applying this to a dashcam or helmet cam, even if my filming would be considered to be “domestic purposes”, posting the resulting video on Twitter or Facebook (e.g. to highlight bad driving, or just as part of a journal of my day), unless I lock down access to the video, it looks like I would be outside the scope of domestic purposes.

Given how many people live out their lives online, engaging in the type of chat that one might previously have had in a pub or coffee shop, this feels like it could entail the imposition of GDPR — which, let’s face it, is not something normal people should have to understand — on the general public, for very common activities. It seems to me like rather too much of an interference with people's private lives.

Somewhere in between

Sharing a family video (e.g. my grandson riding a bike for the first time) with family is clearly domestic purpose.

I assume doing so over iMessage is still so, as I do not hand the video to Apple (end to end encryption).

What of posting to a small (family) group on Facebook? My "purpose" is clearly domestic, but Facebook have the image and they do things with images that are not domestic purposes.

What does that mean for GDPR I wonder? I assume that this means that Facebook needs to comply with GDPR, but I do not (since I am not sharing with an indefinite number of people).

9 comments:

  1. I am driving 25,000 to 30,000 miles per year in the UK, and a fair proportion of it in congested London. So I have dashcams, both front and rear, in my car both recording in full HD.

    My understanding is that because I am on public roads and therefore in a public place I can photograph or video record anything I want.

    On private land, of course, I have to abide by the landowner's rules. Although in practice the only place I find these landowner's rules enforced is in a car dealership where they want the cameras turned off in order to ensure I have no evidence of their actions and their bad work / non-work. They claim it is for privacy of their workforce. I see no need for their worker to do anything to my car in private.

    I also understand, although I cannot remember where I saw this and I also do not know how accurate this is, that if I am involved in some incident then I can choose whether to retain and offer up the dashcam footage as evidence in some criminal or civil matter.

    Obviously if that position is true then I can choose to offer it or not as suits me to pursue or to defend my position on the incident.

    But I am sure I read that the Police cannot force me to offer up the footage if it is to the detriment of my position/stance on the matter.

    I also understand that to drive across the border into Switzerland with dashcams recording is illegal due to Swiss privacy laws. Talking with a highly tech-savvy Swiss resident, he had never heard of the concept of dashcams and couldn't see the need/desire for them.

    Would be interesting to know more on all this.

    ReplyDelete
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    1. And this is one of the things I miss about Switzerland - the expectation that everyone is honest.

      Delete
    2. > I am sure I read that the Police cannot force me to offer up the footage if it is to the detriment of my position/stance on the matter

      That seems highly questionable. See, for example, s19 Police and Criminal Evidence Act 1984 (and "premises" includes any vehicle): https://www.legislation.gov.uk/ukpga/1984/60/section/19

      Delete
  2. Hm, when I first installed home CCTV there was a requirement to register on the ICOs public register if filming outside your property, which I did and paid the fee.

    Then this year when by registration came to an end the ICO emailed me to say there was no longer a need to register for this purpose, so I've now just left it.

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  3. Someone did an 'art project' based on this exact concept, that we're surrounded by CCTV and other cameras - so why should one guy with a camera in your face you uncomfortable:

    https://www.youtube.com/watch?v=mP5ZVPwP7bg

    ReplyDelete
  4. >My understanding is that because I am on public roads and therefore in a public place I can photograph or video record anything I want.

    I think this is a common misconception. If it was the case you would have no issue with me following you around videoing you going about your business. People have a right to privacy even in a public place, just less so. It is difficult to define where the line between acceptability and stalking occurs.

    Good luck with try to piece together all the parts of conflicting laws and legislation though.

    I would imagine though that the general public would have no right to record in Tesco's for example or any other private property.

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  5. I don't think your argument of "you turn your cameras off and I'll turn mine off" works at all, because you are entering someone's private property. By doing so you've also implicitly accepted you'll be captured on CCTV footage (assuming this is some sort of store which will have the inevitable warnings). All that would happen is you'd be asked to leave the store, and you'd probably fall afoul of privacy laws since you're recording in someone's property without permission where they have the reasonable expectation of being able to control who gets filmed and when.

    Also wearing a body cam in that context is weird. The store has CCTV to reduce theft, obviously. The police have bodycams as evidence of what happened at a scene, and evidence that they did or did not engage in misconduct - these are extremely useful reasons to wear a bodycam. If someone is going to assault you then they'd just smash the camera as well, and what sort of behaviours would you be up to if you needed video evidence? So it's not a valid comparison.

    You make some good points on the general legislation, but the above just comes across as being extremely socially awkward and oblivious.

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  6. I have several times been asked by the police to upload dashcam footage to Youtube, because they couldn't view the video I linked them to via a URL. They didn't ask me to remove it afterwards...

    > Uknown said:

    "I think this is a common misconception. If it was the case you would have no issue with me following you around videoing you going about your business."

    It's not, but what you are describing would come under harassment.

    The public photographing issue is discussed frequently on photography forums, and when you are out in the public you can photograph who you want. Annoying street photographers do it all the time. You can even photograph the outside of buildings and cinema films being shot in the street, despite what their agitated security guards may say.

    ReplyDelete
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    1. > when you are out in the public you can photograph who you want

      And, in doing so, depending on your purpose, you may be subject to data protection law.

      So not a case of stopping you from doing it, or preventing you from doing it, but setting the regulatory environment in which you do it.

      Delete

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